But as part of its ongoing war on democratic representation, the Trump administration has now issued a memorandum declaring the following:
For the purpose of the reapportionment of Representatives following the 2020 census, it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status ... to the maximum extent feasible and consistent with the discretion delegated to the executive branch.
For all the legal validity this order has, it might as well have said, “It is the policy of the United States that Donald Trump weighs 180 pounds, has washboard abs and can dunk a basketball.”
So what are they up to?
First, let’s explain just how wrong this is. After the order was released, I spoke with Thomas Wolf of the Brennan Center for Justice, who was emphatic that the administration’s order “is exactly as unconstitutional as it appears.”
“Persons means persons,” Wolf said. “Persons means everyone."
“There is no secret language” in the 14th Amendment that would allow the administration to exclude people who are undocumented, Wolf continued. “The president does not have the power to decide who counts and who doesn’t. The Constitution already decided that for him.”
Recall that Trump and his allies repeatedly lost in court in their attempt to add a citizenship question to the census, including at the Supreme Court, and finally gave up last July.
That, plus the fact that it’s impossible to easily identify undocumented people, makes this whole new push even more bizarre. Even if the administration could exclude undocumented people from apportionment counts, Wolf pointed out, “They’d have to engage in some form of guesswork” to determine how many undocumented people there are in each state, which couldn’t be done precisely.
So the process as Trump envisions it would be that the census is completed, the data are ready for reapportionment — where some states will lose seats and others will gain — and at the end, the president would essentially step in and say, “Well, I think there are a lot of illegal aliens in Texas, so they get, hmm, let’s call it two fewer seats.”
As Wolf emphasized to me, “The apportionment process follows a very clear chain of possession and choreography. The proposal on the table today for the president to fiddle with the numbers is just not how the process works.”
This is part of a broader Republican effort at the state and federal level to exclude noncitizens from counts for the purpose of apportioning seats and drawing district lines; Alabama, which could lose a House seat after this year’s census, sued in 2018 in what was functionally an attempt to get federal courts to wish the 14th Amendment out of existence and say that noncitizens shouldn’t count. The fact that the suit was absurd on its face has not accelerated its progress through the courts.
What’s the real purpose behind the Trump administration doing this now? You’ll recall that when they were trying to get a citizenship question added to the census, there was a great deal of talk about how it could make undocumented people too afraid to fill out the forms. That question never made it into the census, but their goal with this move is just slightly different.
It may not be so much about fear as it is about convincing noncitizens that they just don’t need to bother responding to the census.
Let’s keep in mind that most people don’t pay much attention to the news, let alone to issues this arcane. But say you’re an undocumented person, and you hear something about noncitizens not counting in the census; maybe you didn’t catch the whole thing. Why bother filling out that form if that’s the case? If you’re not going to be counted anyway, who cares?
That misconception may be exactly what the administration is after. If undocumented people don’t fill out the census, Trump and his allies will have achieved what they wanted all along: undercounting immigrant communities so that they’re deprived of federal resources and political power.
It doesn’t even matter if eventually the Trump administration loses in court, which it will. Just spreading the idea that noncitizens won’t be counted is enough.
So what should people do about it? “The best way to strike back is ensure that you get counted,” says Wolf, by responding to the census whether you’re a citizen or not. That would be a start.
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